Opposition Brief — Campo Corp. v. Supreme Judicial Court of Massachusetts

Table of Contents.

Jurisdiction

Alleged questions presented

Statement of the case

Reasons for not granting the writ

Argument

Conclusion

Table of Authorities Cited.

Cass.

Abbott v. Inhabitants of North Andover,

145 Mass. 484

Bell v. Eames, 310 Mass. 642

Cayon v. Chicopee, Mass. Adv. Sh. (1971) 1785

Fluet v. Eberhardt, 294 Mass. 408

Galassi Mosaic & Tile Co. v. Boston, 295 Mass. 544

Glover v. Waltham Laundry Co., 235 Mass. 330

Higginson v. Fall River, 226 Mass. 423

Lawrence v. Stratton, 312 Mass. 517

Reed v. Springfield, 258 Mass. 115

Sykes v. Smith, 333 Mass. 560

Statutes, Erc.

US. Constitution, Fifth Amendment

U.S. Constitution, Fourteenth Amendment

Mass. G.L. ¢. 60, §§ 64, 69

Mass. G.L. c. 185, § 1

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—

Supreme Court of the United States.

Octoser Trrm, 1972.

No. 72-443.

CAMPO CORPORATION er at,

Petitioners,

v.

SUPREME JUDICIAL COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

BRIEF OF THE CITY OF LAWRENCE, COMMON-

WEALTH OF MASSACHUSETTS, IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI.

Jurisdiction.

This petition for writ of certiorari was not filed within

90 days of the date of the entry of the judgment of the

Supreme Judicial Court of the Commonwealth of Massa-

chusetts on June 14, 1972, and therefore should be denied.

Alleged Questions Presented.

The city of Lawrence contends that there is no question

to be presented before this Honorable United States Court

2

in that the petitioners were not deprived of property with.

out due process of law nor was private property taken for

public use without just compensation in violation of article

V and article XIV of the amendments of the Constitution

of the United States.

Statement of the Case.

The major petitioner is Jean C. Campopiano, an attorney

and also major stockholder in Campo Corporation, a Masss-

chusetts corporation which was revived in 1968 after the

commencement of this suit against the city of Lawrence

et als., on July 14, 1966. The petitioners name the city of

Lawrence, a municipal corporation; Daniel P. Kiley, Jr,

the then mayor, and Roland F. Deziel, the city treasurer,

as respondents.

The city of Lawrence operates under a charter establish-

ing a commission form of government. The said govern.

ment consists of a mayor and four aldermen who administer,

individually, separate municipal departments and constitute

the city council.

The respondent Daniel P. Kiley, Jr., was elected mayor

to serve a term of two years beginning January 1, 1966,

and he succeeded the former mayor, John J. Buckley, who

was the mayor during the years covered by the petitioners’

bill of complaint.

The petitioners allege to have owned property known as

the Capitol Theatre, located at 139 Common Street in the

city of Lawrence.

The respondent city of Lawrence on June 1, 1959, brought

a petition in the Land Court of Massachusetts to foreclose

all rights of redemption from certain tax lien proceedings

against the real estate known as the Capitol Theatre,

allegedly owned by the petitioners Jean C. Campopiano and

Helen D’Errico at that time. This culminated in a decree

3

of the Land Court of Massachusetts foreclosing the rights

of the petitioners, dated December 8, 1967, which was sub-

sequent to the commencement of this bill in equity against

the city of Lawrence e¢ als., on July 22, 1966, establishing

that there was due the city of Lawrence for taxes approxi-

mately $75,045.75.

On or about September 9, 1963, a proposed off-street

parking plan, including possible land acquisitions, was sub-

mitted to the city of Lawrence for consideration by the local

chamber of commerce. The Capitol Theatre parcel, so-called,

allegedly owned by the petitioners, was not included therein.

Asa result, the petitioner Jean C. Campopiano promulgated

a petition, signed by certain local residents, which was

presented to the city council for its consideration.

The then mayor, John J. Buckley, suggested to the city

clerk that the premises be included for consideration with

the eight properties theretofore suggested.

Proposals were submitted by Roland R. Siskind and

Richard G. Whipple, regarding appraisals of the several

properties located in the downtown section which were to be

considered for acquisition for off-street parking.

On March 9, 1964, the city council voted to advertise a

$600,000 loan for the purpose of acquiring sites for public

parking, and in April, 1965, all the sites, with the exception

of the Capitol Theatre site, were taken by eminent domain.

The Capitol Theatre property, so-called, was appraised by

Roland R. Siskind on October 1, 1964, and he set as a fair

cash value the sum of $19,300; on October 20, 1964, Richard

. @. Whipple’s appraisal set a fair cash value of $28,000.

The contents of these appraisals were made known to the

petitioner Jean C. Campopiano and, at that time, there was

approximately $70,000 in taxes due the city of Lawrence.

There being such a discrepancy between the actual cash

value of the property as disclosed by the appraisers and

the demand of the petitioners, it was decided by the mayor

4

and members of the city council that it would be unwise to

take the property by eminent domain and thus inherit ,

land damage petition against the city of Lawrence, as the

city was in the process of acquiring title to the property in

the Massachusetts Land Court for nonpayment of taxes for

the years 1951 to 1966, inclusive.

The master’s hearings commenced on June 9, 1969, and

witnesses were the former mayor, John J. Buckley; Roland

F. Deziel, city treasurer; Joseph R. Smith, city clerk;

Roland R. Siskind, appraiser; Richard G. Whipple, ap

praiser; Charles Lord, one of the assessors of the city of

Lawrence; Nicholas J. Callahan, alderman and director of

engineering; Vincent P. Foley, alderman and director of

public safety; Gerard A. Guilmette, alderman and director

of health and charities; and James J. O'Neill, alderman and

director of public property and parks, all constituting the

city council at the period covered by the bill of complaint;

William F. Lucey, secretary and clerk of the Greater

Lawrence Chamber of Commerce; Roger Bower, former

president of the Greater Lawrence Chamber of Commerc,

and the petitioner Jean C. Campopiano.

The master filed a report in which he found for the city

of Lawrence et als., on July 24, 1969.

An interlocutory decree confirming the master’s report

was entered October 3, 1969, and a final decree dismissing

the bill was entered July 3, 1970 (Petition, p. 17).

The petitioners filed an appeal to the Supreme Jndicial

Court of the Commonwealth of Massachusetts on July 2,

1970 (Petition, p. 18) and on June 14, 1972, a rescript

opinion was entered by said court affirming the final decree

with costs of appeal (Petition, pp. 13-14).

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Reasons for Not Granting the Writ.

1. The issue as alleged in this case by the petitioners was

not properly raised before the Supreme Judicial Court of

the Commorwealth of Massachusetts.

2. There were no improprieties by the city of Lawrence

in not exercising its right of eminent domain.

3. The city of Lawrence did not, by any of its actions,

destroy the alleged value of the petitioners’ property and

thus deprive the petitioners of their property rights in vio-

lation of the due process clause of the Fifth Amendment.

For these reasons the writ of certiorari should not be

granted.

Argument.

be guilty of conspiracy. Galassi Mosaic & Tile Co. v. Boston,

295 Mass. 544.

The mayor by virtue of his office has no powers to bind

the city. Lawrence v. Stratton, 312 Mass. 517, 521; Abbott

v. Inhabitants of North Andover, 145 Mass. 484; Higginsos

v. Fall River, 226 Mass. 423; Fluet v. Eberhardt, 294 Mass

408.

The mere fact that an order borrowing or appropriating

the sum of $600,000 for the purpose of taking land by

eminent domain was adopted by the mayor and the members

of the city council, such borrowing or appropriating being

for off-street parking, cannot be construed as authorizing

the taking of petitioners’ land, known as the Capitol Theatre.

Reed v. Springfield, 258 Mass. 115, 118; Cayon v. Chicopee,

Mass. Adv. Sh. (1971) 1785. The said premises, never having

been taken, were definitely excluded from the order of

taking by the city of Lawrence.

It would not have been in the best interest of the city of

Lawrence to have taken the petitioners’ land. By competent

and reliable testimony of two appraisers, the fair cash

value of the premises was set at $19,300 and $28,000, re

spectively, and the Massachusetts Land Court decreed that

the petitioners owed the city of Lawrence taxes assessed

against said premises in the amount of $75,045.75.

The Massachusetts Land Court proceedings, case No.

36892, concerning the premises described in the petitioners’

bill of complaint ended with a final decree foreclosing the

rights of redemption of Campo Corporation and Hele:

D’Errico, on December 8, 1967, from which decision

appeal has been taken. At the time of the entry of the final

decree by the Massachusetts Land Court, it was decreed that

Campo Corportaion owed the city of Lawrence taxes in the

amount of $75,045.75.

Under the provisions of Mass. G.L. ¢. 185, § 1, the Land

Court is a court of record and has exclusive jurisdiction

over proceedings for foreclosure of and redemption from

tax titles under chapter 60, section 64 of said General Laws

Bell v. Eames, 310 Mass. 642, 645.

wa

7

The petitioners filed no petition in the Land Court seek-

ing to vacate the decree under the provisions of said

Mass. G.L. c. 60, § 69, and therefore title to the property

in question, the Capitol Theatre, so-called, is vested in the

city of Lawrence as of December 8, 1967.

Conclusion.

The master’s finding that the petitioners’ lease was in-

tended solely as a device to create a nonexisting value and

for use in anticipated dealings with the city of Lawrence

must stand, as the Supreme Judicial Court of the Common-

weelth of Massachusetts has found that the findings of the

master were not mutually inconsistent, contradictory or

plainly wrong and must be accepted as true.

Therefore the rescript opinion of the Supreme Judicial

Court of the Commonwealth of Massachusetts entered June

14, 1972, should be affirmed and the city of Lawrence et als.

be allowed their costs.

Respectfully submitted,

MICHAEL J. BATAL, SR.,